In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2229

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ELISEO CONTRERAS,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, Hammond

Division.

No. 99 CR 26--Rudy Lozano, Judge.

ARGUED SEPTEMBER 21, 2000--DECIDED APRIL 25,

2001 

 Before ROVNER, DIANE P. WOOD, and WILLIAMS,

Circuit Judges.

 ROVNER, Circuit Judge. A jury convicted

Eliseo Contreras on charges that he

conspired with others to possess cocaine

with the intent to distribute the

narcotic, see 21 U.S.C. sec. 846, and

that he possessed cocaine with the intent

to distribute on five separate occasions,

see 21 U.S.C. sec. 841(a)(1). Judge

Lozano ordered him to serve a prison term

of 200 months. Contreras contends on

appeal that the record does not support

the inference that he conspired with one

or more other individuals in pursuit of

his drug trafficking. With that

contention we agree, and consequently we

will vacate his conviction on the

conspiracy charge. Contreras also argues

that the drug quantity for which the

district court held him to account at

sentencing lacks the support of reliable

evidence. That argument we do not find

persuasive, and so we shall affirm his

sentence as modified to reflect the

vacation of his conspiracy conviction. 

I.
 On four occasions in the Fall of 1997--

September 29, October 15, November 6, and

November 14--Contreras distributed

cocaine to a paid confidential informant,

Roberto Nunez. Nunez was working with

East Chicago, Indiana police officer

David Zamora, who was assigned to a high

intensity drug trafficking task force of

the U.S. Drug Enforcement Administration.

These four transactions would become the

basis for Counts Two through Five of the

indictment against Contreras, which

charged him with the possession of

cocaine with the intent to distribute.

 Contreras distributed cocaine to Nunez

on two additional dates during this same

time period--October 24 and October 28.

According to Nunez, each of these

transactions involved a third person. On

October 24, Zamora dropped Nunez near El

Sombrero bar, where Nunez had previously

purchased cocaine from Contreras. On this

occasion, he intended to purchase one

ounce of cocaine. When he discovered that

Contreras was not present at the bar,

Nunez asked another man he knew to be

involved in drug trafficking, Mike

Villanueva, to call Contreras. Villanueva

obliged him, left the bar, and later

returned with an ounce of cocaine he said

he had obtained from Contreras. On

October 28, Nunez returned to El

Sombrero, again with the intent to

purchase an ounce of cocaine from

Contreras; again Contreras was not

present. Nunez testified that he asked a

man by the name of Luis Manuel Eulloqui,

known to him as "Triste," to get in touch

with Contreras. Triste subsequently left

the bar, walked to Contreras’ residence,

and returned to the bar with the cocaine

that Nunez wanted.

 Zamora’s testimony regarding these two

transactions differed from Nunez’s in

certain important respects. Zamora

testified that after Nunez entered the

bar on October 24, Nunez contacted him to

report that someone in the bar had

contacted Contreras, and that Triste

would be leaving the bar to retrieve the

cocaine from Contreras. Zamora and fellow

surveillance agents subsequently observed

Triste leave El Sombrero, walk to

Contreras’ apartment (five to six blocks

away from the bar), enter, exit, walk

back to the bar, and meet with Nunez. As

for the October 28 transaction,

surveillance agents, consistent with
Nunez’s version, did see Triste leave the

bar, walk to Contreras’ residence, and go

inside. But according to Zamora, Triste

never came out. Instead Nunez contacted

Zamora and explained that Contreras

wanted Nunez to come to his apartment.

Nunez subsequently walked to the

apartment and picked up the cocaine.

 Based on the evidence obtained as a

result of these transactions, Zamora

procured a search warrant for Contreras’

apartment, which members of the task

force executed on November 25. Agents

discovered a total of 829.6 grams of

cocaine in Contreras’ freezer, along with

$5,000 in cash. According to Zamora, who

participated in the search, the packaging

of the cocaine (in three separate

quantities of roughly 275 grams each) was

indicative of distribution. Contreras’

possession of this cocaine formed the

basis for Count Six of the indictment.

Agents also recovered a digital scale

from a kitchen cabinet and a .38 caliber

handgun loaded with hollow-point

ammunition from a dresser. Contreras was

present when his apartment was searched

and was placed under arrest. According to

Zamora, after Contreras was advised of

his rights, he admitted that an

unidentified Hispanic individual had

dropped off a kilogram of cocaine at his

residence on ten separate occasions in

the previous six months.

 At the close of the government’s casein-chief and again at the close of all

evidence, Contreras moved for a judgment

of acquittal on all charges in the

indictment, including the conspiracy

charge set forth in Count One. The court

denied these motions, and the jury

convicted him on all counts.

 In his pre-sentence report, the

probation officer recommended that

Contreras be sentenced based on a drug

quantity of 11.2148 kilograms of cocaine.

See United States Sentencing Guidelines

sec. 1B1.3. That quantity included the

135.2 grams of cocaine that Contreras

sold to Nunez on the four occasions

referenced in Counts Two through Five of

the indictment, the 829.6 grams of

cocaine that was discovered in the search

of Contreras’ apartment on November 25,

another 0.25 kilograms of cocaine

corresponding to the $5,000 in cash

(presumed to be drug proceeds) found in
Nunez’s freezer on the same date, and an

additional ten kilograms which, according

to Contreras’ statement to Zamora, the

unknown Hispanic male had distributed to

Contreras in the months preceding his

arrest. 

 Contreras objected to the inclusion of

the ten kilograms, denying that he had

ever made a statement to Zamora admitting

receipt of this amount. In view of the

objection, the district court took

evidence as to the appropriate drug

quantity. Zamora took the witness stand,

and he again testified that Contreras had

admitted receiving ten one-kilogram

quantities of cocaine from the

unidentified Hispanic male. But, Zamora

now testified, Contreras said he had

received these kilogram quantities at the

rate of one per month over the ten months

immediately preceding his arrest, not six

months. Contreras himself testified at

sentencing as well. According to

Contreras, Zamora never asked him

anything about the quantities of cocaine

he had trafficked. 

 The district court credited Zamora’s

testimony, and thus concluded that the

Hispanic male had supplied Contreras with

ten kilograms of cocaine for distribution

in the months preceding his arrest. The

court found that Contreras had received

three of these kilograms within the time

frame of the conspiracy charged in the

indictment--September through November

1997. Coupled with the other cocaine

amounts involved in Counts Two through

Six, this brought the drug quantity to

roughly 3.9 kilograms. The court treated

the remaining seven kilograms that

Contreras received from the Hispanic male

as relevant conduct. See U.S.S.G. sec.

1B1.3(2) & application note 9(B).

Consequently, the court held Contreras to

account for a total of 10.9 kilograms of

cocaine./1 The inclusion of the 10

additional kilograms had the effect of

raising the base offense level from 26 to

32. Adjustments for possession of a gun

in the course of a drug offense and

obstruction of justice, see U.S.S.G.

sec.sec. 2D1.1(b)(1), 3C1.1, produced a

final offense level of 36, and a

sentencing range of 188 to 235 months.

The court ordered Contreras to serve a

prison term of 200 months.

II.
A.

 The conspiracy charge against Contreras

required, inter alia, proof that he and

at least one other person agreed to

possess cocaine with the intent to

distribute. E.g., United States v.

Billops, 43 F.3d 281, 284 (7th Cir.

1994), cert. denied, 514 U.S. 1030, 115

S. Ct. 1389 (1995). Although the

government need not always establish

specifically with whom the defendant

conspired, see United States v.

Stephenson, 53 F.3d 836, 846 (7th Cir.

1995), citing United States v. Smith, 995

F.2d 662, 666 (7th Cir. 1993), cert.

denied, 510 U.S. 1056, 114 S. Ct. 718

(1994), it must nonetheless establish

that a conspiratorial agreement existed

between the defendant and another

individual, see United States v.

Carraway, 108 F.3d 745, 750 (7th Cir.)

(per curiam), cert. denied, 522 U.S. 891,

118 S. Ct. 228 (1997). The existence of

that agreement may be proved

circumstantially. See, e.g., id. As we

discuss in greater detail below, the

evidence in this case reveals that

Contreras transacted illicit business

with a number of different individuals,

purchasing cocaine from one and selling

cocaine to or through several others. At

one time or another, the government has

suggested that all of these individuals

were participants in a conspiracy with

Contreras. Contreras, on the other hand,

contends that the evidence at most

discloses a buyer-seller relationship

with these persons. Of course, in order

to establish a conspiracy, "[w]hat is

necessary and sufficient is proof of an

agreement to commit a crime other than

the crime that consists of the sale

itself." United States v. Lechuga, 994

F.2d 346, 347 (7th Cir.) (en banc)

(plurality), cert. denied, 510 U.S. 982,

114 S. Ct. 482 (1993); see also, e.g.,

United States v. Clay, 37 F.3d 338, 341

(7th Cir. 1994).

 In assessing whether the evidence

supports the notion that the defendant

conspired with another narcotics

trafficker, "we are looking for evidence

of ’a prolonged and actively pursued

course of sales coupled with the seller’s

knowledge of and a shared stake in the

buyer’s illegal venture.’" United States

v. Pearson, 113 F.3d 758, 761 (7th Cir.)

(quoting Clay, 37 F.3d at 341), cert.
denied, 522 U.S. 1035, 118 S. Ct. 641

(1997); see also United States v. Gee,

226 F.3d 885, 894 (7th Cir. 2000); United

States v. Menting, 166 F.3d 923, 928 (7th

Cir. 1999). Factors that bear on that

assessment include the length of time

that the seller affiliated with the

buyer, the established method of payment

(for example, whether the seller

"fronted" the narcotics to the buyer),

the extent to which the transactions were

standardized, and the level of mutual

trust between the buyer and seller. Gee,

226 F.3d at 894; United States v. Hach,

162 F.3d 937, 943 (7th Cir. 1998), cert.

denied, 526 U.S. 1103, 119 S. Ct. 1586

(1999); Clay, 37 F.3d at 342; Lechuga,

994 F.2d at 363-64 (Cudahy, J.,

concurring in part and dissenting in

part). "Although none of these factors is

dispositive, if enough are present and

point to a concrete, interlocking

interest beyond individual buy-sell

transactions, we will not disturb the

fact-finder’s inference that at some

point, the buyer-seller relationship

developed into a cooperative venture." 

Hach, 162 F.3d at 943. With these factors

in mind, we turn to the record to assess

whether the evidence permits the

inference that Contreras conspired with

any of the various individuals that the

government has identified as putative coconspirators.

 One prospect, Roberto Nunez, may be

ruled out quickly. Nunez, of course,

purchased cocaine from Contreras on at

least six occasions during the threemonth period of the alleged conspiracy.

But on each of these occasions, he was

acting as a paid, confidential informant

on the government’s behalf. Because

Nunez’s goal was to expose, rather than

to commit, a crime, there could not be

the meeting of the minds required to

establish a conspiratorial agreement. See

United States v. Mahkimetas, 991 F.2d

379, 383 (7th Cir. 1993). 

 There are three principal alternative

possibilities, each of which the

government cited in its closing argument

to the jury: Mike Villanueva, the man

who, according to Nunez, obtained the

cocaine for him from Contreras on the

occasion of the October 24 transaction;

Luis Manuel Eulloqui, a.k.a. Triste, who,

again according to Nunez, assisted him

with the acquisition of cocaine from
Contreras on October 28, and, according

to Zamora, on October 24 as well; and the

unknown Hispanic male, whom Nunez,

according to Zamora, identified as his

supplier of kilogram quantities of

cocaine. Although it is possible that one

or more of these individuals conspired

with Contreras, the evidence of record

does not support the inference that any

of them in fact entered into a

conspiratorial agreement with Contreras.

 With respect to Villanueva, the evidence

establishes at most that he obtained

cocaine from Contreras for Nunez on one

occasion. The jury reasonably could have

concluded that by doing so, Villanueva

aided and abetted Contreras’ sale to

Nunez. But the record does not reveal any

prolonged cooperation with Contreras, nor

any stake in the success of Contreras’

trafficking--the type of evidence that

usually signals a conspiratorial

relationship. See Pearson, 113 F.3d at

761. Without additional evidence along

these lines, Villanueva’s assistance on

this one occasion does not permit the

inference that he conspired with

Contreras. See United States v. TorresRamirez, 213 F.3d 978, 982 (7th Cir.

2000).

 The evidence with respect to Triste is

not much stronger. The jury might have

credited Zamora’s testimony concerning

the October 24 transaction, which

indicated that it was Triste, not

Villanueva, who obtained the cocaine from

Contreras on that date. With respect to

the October 28 transaction, on the other

hand, the jury might have chosen to

credit Nunez’s testimony, which indicated

that it was Triste who obtained the

cocaine on that date. This is the most

favorable take on the evidence in so far

as Triste’s prospects as a co-conspirator

are concerned, because it has him not

once but twice obtaining cocaine from

Contreras for Nunez. What is lacking once

again, however, is any evidence that

Triste had a stake in Contreras’ sales,

for example, or evidence that Triste’s

assistance in these two instances was

anything more than casual or

happenstance.

 The unidentified Hispanic male is

perhaps the best candidate for the role

of co-conspirator, in that, according to

Zamora’s testimony regarding Contreras’
post-arrest statement, he supplied ten

one-kilogram quantities of cocaine to

Contreras over a period of six to ten

months. These repeat sales suggest that

as buyer and seller, Contreras and his

supplier had more than a transient

relationship. Contreras’ multiple

purchases of one-kilogram quantities

reveal a certain comfort and regularity

in his dealings with the unidentified

supplier. Yet, the evidence reveals

nothing more about the circumstances and

terms of Contreras’ transactions with his

supplier. There is no evidence, for

example, that the supplier "fronted" the

cocaine to Contreras such that his

payment would derive from Contreras’ resale of the drug. See, e.g., TorresRamirez, 213 F.3d at 982. There is no

evidence that the supplier gave Contreras

a favorable price on the cocaine on the

expectation of future purchases. See

United States v. Dortch, 5 F.3d 1056,

1065-66 (7th Cir. 1993), cert. denied,

510 U.S. 1121, 114 S. Ct. 1077 (1994),

and cert. denied, 513 U.S. 1126, 115 S.

Ct. 933 (1995), discussing United States

v. Fort, 998 F.2d 542, 543, 546 (7th Cir.

1993); cf. Direct Sales Co. v. United

States, 319 U.S. 703, 63 S. Ct. 1265

(1943). Nor is there any evidence, aside

from the bare number of sales, of

prolonged cooperation between Contreras

and his supplier. See Lechuga, 994 F.2d

at 349-50 (plurality). In short, there is

no evidence whatsoever that permits one

to infer that the interaction between

Contreras and his unidentified supplier

amounted to something more than a buyerseller relationship, that is, "something

more than a series of spot dealings at

arm’s length between dealers who have no

interest in the success of each other’s

enterprise." Id. at 349. The multiple

purchases by themselves, without any

additional evidence of the kind we have

mentioned, do not permit the inference

that the unidentified supplier conspired

with Contreras. United States v. Thomas,

150 F.3d 743, 745-46 (7th Cir. 1998) (per

curiam); see also Lechuga, 994 F.2d at

349-50 (plurality).

 One final prospect remains. Francisco

Godinez was Contreras’ landlord, and a

utility bill addressed to Godinez, for

the apartment that Contreras lived in,

was among the items found in Contreras’

apartment at the time of his arrest. The

cocaine sales to Nunez underlying Counts
Four and Five of the indictment took

place at this apartment. Further, the

intermediaries who helped Nunez with the

purchases he made on October 24 and 28

both walked to Contreras’ apartment in

order to obtain the cocaine. The

substantial amount of cocaine found at

the apartment at the time of Contreras’

arrest obviously suggests that Contreras

stored cocaine at that location as well.

The apartment was, in sum, a locus for

Contreras’ drug trafficking. In the

government’s view, it is significant that

Godinez was Contreras’ landlord, and that

the utility bill address to Godinez was

found in Contreras’ apartment. Those

facts suggest to the government that

there was a conspiratorial relationship

between Godinez and Contreras.

 These facts alone, however, do not

permit the inference that there was an

illicit agreement between Godinez and

Contreras. So far as the testimony at

trial revealed, Godinez was nothing more

than Contreras’ landlord. There was no

evidence suggesting that Godinez was even

aware of Contreras’ drug trafficking, let

alone that he was in some way a party to

it.

 At sentencing, it is true, the

government elicited evidence from Agent

Zamora implicating Godinez in Contreras’

cocaine operation or vice-versa. Around

the time of Contreras’ arrest, according

to Zamora, Godinez himself was arrested

when he delivered 30 kilograms of cocaine

to a DEA informant. Godinez later

disclosed that shortly before the search

warrant was executed on Contreras’

apartment, he had removed some 23

kilograms of cocaine from that apartment,

placed it (with Contreras’ knowledge)

into a vehicle parked in front of the

apartment, and later moved the vehicle to

another location. Zamora also indicated

Godinez had engaged in discussions at the

El Sombrero bar in front of a

confidential informant and Contreras

regarding the 30-kilogram sale that

eventually culminated in Godinez’s

arrest. During a follow-up meeting

between Godinez, Villanueva, and the

informant regarding that sale, Godinez

acknowledged that he and Contreras were

co-owners of El Sombrero. 

 Whether or not this additional testimony

would suffice to establish a conspiracy
between Contreras and Godinez is beside

the point, however, given that the jury

never heard this evidence. Consequently,

we may not consider it. See Menting, 166

F.3d at 928 (additional information set

forth in pre-sentence report cannot be

considered in weighing sufficiency of

evidence underlying defendant’s

conviction). The jury knew only that

Contreras used his apartment to conduct

narcotics-related business, that Godinez

was Contreras’ landlord, and that a

utility bill addressed to Godinez was

found in the apartment. Standing alone,

these facts simply do not permit the

inference that Godinez and Contreras had

agreed to possess cocaine with the intent

to distribute.

 Contreras’ conspiracy conviction must

therefore be vacated. The vacation of

this conviction will have little

practical effect on Contreras’ sentence.

The drug quantity attributed to him for

sentencing purposes was based on

transactions in which Contreras himself

engaged, as opposed to the transactions

of co-conspirators. Consequently, neither

the relevant drug quantity, nor the

applicable sentencing range, turned on

the conspiracy conviction, and there is

absolutely no indication in the record

that the sentence Judge Lozano imposed

was affected by that conviction.

Pragmatically speaking, the sole

detriment that Contreras suffered by

virtue of the conspiracy conviction was

an additional special assessment of

$100./2 Consequently, we see no need to

remand the case for re-sentencing. We

shall simply modify the judgment to

reflect removal of the special assessment

imposed pursuant to Contreras’ conviction

on Count One of the indictment.

B.

 The quantity of narcotics that the

district court attributes to the

defendant for sentencing purposes is a

finding of fact that we review for clear

error. E.g., United States v. Huerta, 239

F.3d 865, 875 (7th Cir. 2001). The bulk

of the 10.9 kilograms of cocaine that

Judge Lozano attributed to Contreras

rested on a single piece of evidence--

Zamora’s testimony that Contreras told

him he had received ten, one-kilogram

quantities of cocaine from his

unidentified supplier in the months
preceding his arrest. Sentencing

determinations must be based on reliable

evidence. United States v. Beler, 20 F.3d

1428, 1432-33 (7th Cir. 1994). Contreras

argues that Zamora’s testimony is

unreliable for two reasons. First, there

are inconsistencies in Zamora’s testimony

about Contreras’ trafficking. According

to Zamora’s testimony at trial, Contreras

said that his supplier distributed the

ten kilograms of cocaine to him in the

six months preceding his arrest. Tr. 231.

At the sentencing hearing, however,

Zamora said Contreras had received the

ten kilograms over ten months, not six.

Sentencing Tr. 45. In addition, at trial,

Zamora indicated that Contreras was

prepared to sell Nunez a quarter kilogram

of cocaine for $8,000. Tr. 232. At

sentencing, however, Zamora insisted that

the price was $6,200. Sentencing Tr. 43-

44. Second, there is no independent

evidence corroborating Contreras’ postarrest statement, which of course

Contreras denies having made.

 Notwithstanding the inconsistencies in

Zamora’s testimony, we find no clear

error in the district court’s drug

quantity finding. The fact that there is

no evidence corroborating Zamora’s

testimony as to the amounts of cocaine

Contreras received from his supplier did

not preclude Judge Lozano from relying on

it. No one was more qualified than

Contreras himself to put a number on the

amounts of cocaine he was purchasing and

re-selling, and Zamora was simply

recounting what Contreras told him in

this regard. Whether or not to believe

Zamora called for a credibility

assessment that Judge Lozano, having

heard both Zamora and Contreras testify,

was uniquely situated to make. See, e.g.,

United States v. White, 240 F.3d 656, 661

(7th Cir. 2001). The inconsistencies in

Zamora’s testimony as to the time period

in which Contreras had received the

cocaine and the price he paid for it are

not unimportant. But they were exposed at

the sentencing hearing and no doubt

considered by Judge Lozano. The judge was

satisfied that Zamora had accurately

recounted Contreras’ admission as to the

cocaine he had received from his

unidentified supplier. Sentencing Tr. 90-

91. We find nothing in the record that

cast such doubt on Zamora’s credibility

as to have precluded Judge Lozano from

relying on his testimony. See, e.g.,
United States v. Woods, 148 F.3d 843, 847

(7th Cir. 1998).

III.

 Because we find the evidence

insufficient to support Contreras’

conviction on the conspiracy charge set

forth in Count One of the indictment, we

vacate that conviction. Finding no clear

error in the drug quantity that the

district court attributed to Contreras

for sentencing purposes, we affirm his

sentence. The judgment shall be modified,

however, to relieve Contreras of the

obligation to pay a special assessment

pursuant to his conviction on Count One

of the indictment, which we have vacated.

AFFIRMED AS MODIFIED.

/1 As best we can determine from the record, the

district court ultimately excluded from the total

the one-quarter kilogram of cocaine corresponding

to the $5,000 found in Contreras’ freezer at the

time of his arrest. At the sentencing hearing,

the court seemed to indicate that it would include this amount in the total, in line with the

probation officer’s recommendation. Sentencing

Tr. 91, 122, 123-24. However, if the one-quarter

kilogram had been included, the drug total would

have been approximately 11.2 kilograms. Either

total would have resulted in the same offense

level, however, so the disparity is unimportant.

See U.S.S.G. sec. 2D1.1, Drug Quantity Table.

/2 Of course, the assessment alone requires us to

review the sufficiency of the evidence underlying

the conspiracy conviction. Ray v. United States,

481 U.S. 736, 107 S. Ct. 2093 (1987) (per curiam).